V. K. SINGHAL, J. - (1.) IN these three revisions submitted under section 15 of the Rajasthan Sales Tax Act, 1954, read with section 9 of the Central Sales Tax Act, 1956, common questions of law are involved and, therefore, decided by this common order. The brief facts of the case are that the assessments of the assessee M/s. Delhi Cloth and General Mills Co. Ltd. (hereinafter called as "the company") were framed by the assessing authority, C. T. O. , Special Circle II, Jaipur, under section 9 of the Central Sales Tax Act treating the sale of "tyre cord fabrics" as exempt under the Central Sales Tax Act. The years in dispute are 1967-68, 1965-66 and 1966-67, respectively. The assessing authority, thereafter moved an application to the Board of Revenue on the ground that tyre cord fabric is not a "fabric" within the meaning of entry No. 18 of the Schedule to the Rajasthan Sales Tax Act. The Board of Revenue has held that the "rayon tyre cord fabrics" are "textile fabrics" and are covered by the notification dated December 14, 1957, issued under section 8 (5) of the Central Sales Tax Act. The exemption in the assessment order was granted under section 8 (2a) of the Central Sales Tax Act for which it was held by the Board of Revenue that the assessee is not entitled to claim the exemption under section 8 (2a) of the Central Sales Tax Act, but is entitled for exemption under the notification dated December 14, 1957, issued under section 8 (5) of the Central Sales Tax Act.
(2.) THE contention of Mr. Bapna, learned counsel on behalf of the assessing authority, is that the order of the Board of Revenue is incorrect for the three reasons : (i) THE Notification dated December 14, 1957, issued under section 8 (5) of the Central Sales Tax Act has been impliedly superseded by the notification dated July 1, 1958 issued under section 4 (2) of the Rajasthan Sales Tax Act. (ii) That before the Supreme Court in the assessee's own case reported in [1980] 46 STC 256 (Delhi Cloth & General Mills Co. Ltd. v. State of Rajasthan) the matter was considered in the light of the entry of the Schedule to the Rajasthan Sales Tax Act and since by a subsequent legislation, i. e. , Act No. 4 of 1980 the proviso was added to the entry for the period March 6, 1964 to July 4, 1973, the decision of the Supreme Court shall have no application as the exemption under the local law became conditional. (iii) that the definition in the Additional Duties of Excise Act has also undergone a change and, therefore, the tyre cord fabric manufactured should not be considered to be a textile. In order to appreciate the arguments of the learned Government Advocate the relevant notifications issued are reproduced below. THE notifications which have been issued under the Central Sales Tax Act are dated December 14, 1957, August 12, 1980 and January 2, 1981, which read as under : 1. F. 5 (48)E&t/57-II, dated December 14, 1957 : " In exercise of the powers conferred by sub-section (5) of section 8 of the Central Sales Tax Act, 1956 (Central Act No. 74 of 1956), the State Government being satisfied that it is necessary so to do in the public interest, directs that no tax under the said Act shall be payable, on and from the fourteenth day of December, 1957, by any dealer having his place of business in the State of Rajasthan in respect of the sale by him to a registered dealer from any such place of business, of the following goods, in the course of inter-State trade and commerce, namely : (i) sugar, (ii) tobacco and its products, and (iii) all textiles, whether cotton, woollen or silken, including rayon, art-silk or nylon, but exclusive of pure silken cloth of all varieties (howsoever manufactured ). 2. F. 4 (46)FD/gr. IV/80-7 dated August 12, 1980 : " In exercise of the powers conferred by sub-section (5) of section 8 of the Central Sales Tax Act, 1956, the State Government being of the opinion that it is necessary in the public interest so to do, hereby directs that the tax in respect of sales made in the course of inter-State trade or commerce by any dealer having his place of business in the State from any such place of business of tyre cord fabrics or warp sheets shall be payable and be calculated at 4 per cent. This shall have immediate effect. " 3.F. 17 (71)FD/gr. IV/71-1 dated January 2, 1981 : In exercise of the powers conferred by sub-section (5) of section 8 of the Central Sales Tax Act, 1956, the State Government being satisfied that it is necessary so to do in the public interest hereby directs that all the notifications issued under the said sub-section in so far as they relate to the sales made in the course of inter-State trade, or commerce by any dealer having his place of business in the State, from such place of business, of tyre cord fabrics and/or warp sheets shall stand superseded. THE notifications issued under the Rajasthan Sales Tax Act, are as under : (1) F. 5 (48)E&t/57/i, dated December 14, 1957 : In exercise of the powers conferred by sub-section (2) of section 4 of the Rajasthan Sales Tax Act, 1954 (Rajasthan Act XXIX of 1954), the State Government being of the opinion that it is necessary in the public interest so to do, does hereby exempt the sale of, (i) sugar, (ii) tobacco and its products, and (iii) all textiles, whether cotton, woollen or silken, including rayon, art-silk or nylon, but exclusive of pure silken cloth of all varieties (howsoever manufactured) from payment of the tax payable under the said Act in and from the fourteenth day of December, 1957, on the following conditions, namely : . . . . . . . . . . . (2) F. 5 (48)E&t/57 dated July 1, 1958 : In exercise of the powers conferred by sub-section (2) of section 4 of the Rajasthan Sales Tax Act, 1954, (Rajasthan Act XXIX of 1954) the State Government being of the opinion that it is necessary in the public interest so to do, does hereby unconditionally exempt from the 1st July, 1953, from tax, the sale of - (i) sugar including refined sugar, khandsari and palmyra sugar but excluding all preparations thereof such as sweets, sugar candy, confectionery, etc. ; (ii) all varieties of tobacco manufactured or unmanufactured; (iii) all varieties of textiles (other than pure silk cloth) made wholly or partly of cotton, rayon, nylon, wool or artificial silk including handkerchiefs, towels, napkins, dusters, cotton velvets and velveteen, hosiery cloth in lengths excluding finished items thereof, tapes, niwars and laces. (3) F. 5 (96)FD (CT)/67-1 dated February 20, 1968 : In exercise of the powers conferred by sub-section (2) of section 4 of the Rajasthan Sales Tax Act, 1954, the Government of Rajasthan being of the opinion that it is expedient in the public interest to do so, hereby rescinds the following notifications with immediate effect : 1. Excise & Taxation Department Notification No. F. 5 (48)E&t/57, dated 1st July, 1958. 2. Excise & Taxation Department Notification No. F. 5 (139)E&t/57, dated the 11th August, 1959. 3. Finance (Revenue & Economic Affairs) Department (Commercial Taxes Section) Notification No. F. 5 (54)FD (RT)/64 dated the 23rd February, 1965. (4) F. 2 (12)FD/gr. IV/73/2 dated March 5, 1973 : In exercise of the powers conferred by sub-section (2) of section 4 of the Rajasthan Sales Tax Act, 1954 (Rajasthan Act 29 of 1954), and in supersession of all previous notifications so far as they relate to the exemption of goods mentioned in this notification, the State Government being of the opinion that it is expedient in the public interest so to do, exempts from tax the sale or purchase of cotton fabrics, rayon or artificial silk fabrics, woollen fabrics, sugar and tobacco as defined in the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (Central Act 58 of 1957); provided that in case of khandsari sugar, and unprocessed rayon and artificial silk fabrics, this exemption shall apply only if the additional duty is leviable on them under the said Act and such goods have not specifically been exempted from the said duty and the dealers thereof, furnish proof to the satisfaction of the assessing authority that such duty has been paid. (5) F. 4 (46)FD/gr. IV/80-6 dated August 12, 1980 : In exercise of the powers conferred by sub-section (2) of section 4 of the Rajasthan Sales Tax Act, 1954 (Rajasthan Act 29 of 1954), and in supersession of all previous notifications so far as they relate to the exemption of goods mentioned in this notification, the State Government being of the opinion that it is expedient in the public interest so to do, hereby exempts from tax the sale or purchase of cotton fabrics, fabrics made from man-made fibre, sugar and tobacco as defined in the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (Central Act 58 of 1957) : Provided that in case of tyre cord fabrics or wrap sheets, this exemption shall apply only if the additional excise duty is leviable on them under the said Act and such goods have not specifically been exempted from the said duty and the dealers thereof, furnish proof to the satisfaction of the assessing authority that such duty has been paid. (6) F. 4 (18)FD/gr. IV/82-13 dated May 29, 1982 : In exercise of the powers conferred by sub-section (2) of section 4 of the Rajasthan Sales Tax Act, 1954, the State Government being of the opinion that it is expedient in the public interest so to do, exempts from tax the sale and purchase of unprocessed rayon and artificial silk fabrics (fabrics made from man-made fibre) as defined in the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (Central Act 58 of 1957) with effect from March 5, 1973 excluding tyre cord fabrics or warp sheets, on the condition that the dealer claiming exemption proves to the satisfaction of the assessing authority that he has not collected any tax on the sale or purchase of the said goods under this Act. THE entry 18 of the Schedule to the Rajasthan Sales Tax Act in respect of the exempted goods were inserted by Act No. 13 of 1964 with effect from March 6, 1964 and reads as under : " All cotton fabrics, rayon or artificial silk fabrics, woollen, fabrics, sugar and tobacco as defined in the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (Central Act 58 of 1957 ). " THE above entry was omitted by Act No. 14 of 1973 with effect from March 5, 1973. By Act No. 4 of 1980 in the above deleted entry proviso was added for the period March 6, 1964 to March 4, 1973, which reads as under : Provided that in case of rayon or artificial silk, tyre cord fabric or warp sheets exemption shall apply only if the additional excise duty is leviable on them under the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (Central Act 58 of 1957) and such goods have not specifically been exempted from the said duty and the dealer thereof, furnish proof to the satisfaction of the assessing authority that such duty has been paid. From the various notifications and the amendment in the entry of the Schedule, it is clear that the sale of tyre cord fabrics was exempt except for the period March 6, 1964 to March 4, 1973, under the Rajasthan Sales Tax Act. The matter of the assessee-company came up for consideration before their Lordships of the Supreme Court twice. The first decision is reported in [1976] 38 STC 113 (Delhi Cloth & General Mills Co. Ltd. v. R. R. Gupta) where after referring entries Nos. 19 to 22 of the First Schedule of the Central Excises and Salt Act, 1944, it was observed by their Lordships that the dispute here is of textile, as fabric and that they are dealing with textile fabrics. It was further observed that "essential question to determine is the stage at which the goods under consideration became a 'textile fabric'. The meaning of the term textile given in the Oxford Dictionary is : 'a woven fabric; any kind of cloth'. It must acquire a body and a texture". The assessing authority was directed to undertake enquiry in the light of the decision given therein which included the determination whether the product constituted a "fabric" which is a "textile" by considering the stage reached in the process of manufacture of fabrication of a textile. Subsequently, in [1980] 46 STC 256 in the case of (Delhi Cloth & General Mills Co. Ld. v. State of Rajasthan) their Lordships of the Supreme Court has observed that there is no escape from the conclusion that by and large a tyre cord fabric is regarded as a textile fabric. It was held that the daily life of the average citizen is profoundly affected by the automobile. It is futile to suggest that the tyre plays a less substantial role than other popular commodities in modern life and, therefore, it is, but a short step to recognising the status of what goes into the manufacture of a tyre - the rayon tyre cord fabrics - as "goods of special importance". It was further held that after considering entry 18 of the Schedule to the Rajasthan Sales Tax Act, even if the appellant did not pay additional excise duty, it was exempted from the Central Sales Tax Act on the sales of rayon tyre cord fabric as the exemption was unconditional. Thereafter, the State Legislature by Act No. 4 of 1980 added the proviso in entry No. 18 of the Schedule to the Rajasthan Sales Tax Act (which entry itself was deleted by Act No. 4 of 1973) to make the exemption conditional under the Rajasthan Sales Tax Act. It appears that amendment in the Rajasthan Sales Tax Act was made to nullify the effect of the Supreme Court judgment. The notification dated December 14, 1957, issued under section 8 (5) of the Central Sales Tax Act was neither brought to the knowledge of their Lordships of the Supreme Court nor was considered by them. The contention of Mr. Bapna is that because the powers under section 8 (5) of the Central Sales Tax Act are to be exercised by the State Government then the notification issued on December 14, 1957 under section 8 (5) of the Central Sales Tax Act must be deemed to have been superseded by the Notification dated July 1, 1958, issued under section 4 (2) of the Rajasthan Sales Tax Act and the subsequent amendment in the Rajasthan Sales Tax Act by Act No. 4 of 1980 should be considered to be affecting the liability under the Central Sales Tax Act.
(3.) MR. Bapna has submitted that the State Government alone is exercising power under section 8 (5) of the Central Sales Tax Act and whenever the power under the Rajasthan Sales Tax Act is exercised it must be presumed that the State Government has the knowledge and was aware of the tax liability in respect of the commodity sold. The various notifications issued under the Rajasthan Sales Tax Act superseding the earlier notifications by fiction of law should be deemed to have been adopted under the power which is vested in the State Government under section 8 (5) of the Central Sales Tax Act as well. Mr. Bapna has contended that the exemption was conditional under the provisions of the Rajasthan Sales Tax Act during the years in dispute because of amendment and, therefore, the tax should be considered as payable under the Central Sales Tax Act. He has further submitted that there is a difference between the words "textile" and "fabric" and that by applying the principles of common and commercial parlance the tyre cord fabric cannot be considered to be textile. According to Mr. Bapna the decision given by their Lordships of the Supreme Court in the petitioner's case will not cover the present dispute since the entries in the Central Excises and Salt Act have been amended and in common and commercial parlance the tyre cord fabric is not textile. Mr. Mehta appearing on behalf of the respondent has pointed out that the notification dated July 1, 1958, was superseded by notification dated January 2, 1981 only and the matter is concluded by the decision of their Lordships of the Supreme Court. I have considered the arguments of both the parties and have gone through the record. It is true that before their Lordships of the Supreme Court the Notification dated December 14, 1957, issued under section 8 (5) was not considered but on that account the assessee is not estopped from raising the legal plea for the first time before the Board of Revenue that it is entitled for exemption on an alternative ground also. ;